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TMI Blog2020 (5) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority) Rules, 2016 against the Corporate Debtor M/s. Phadnis Resorts & Spa India Limited (PR&SIL). 2. The relief sought by the IRP in MA 3031/2019, inter alia, is for the following:- "A. Necessary direction shall be provided allowing the applicant to take possession of fixed assets and all documents a valiable in the office and other premises of the Corporate debtor. B. The instructions pertaining to carry out the necessary actions by the resolution professional shall be provided to the Economic offences Wing. C. The past directors of the Corporate Debtor should be directed to assist in the present proceedings. D. Public announcement in newspaper shall be allowed to be issued for appearance of the Directors before this Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office address and the residence address. However, it was closed and even after all possible enquiries no contact could be established. The Applicant visited the Partners of Marathe Hospitality, Mr. Anup Naik, who as per the IRP/ RP, is the Tax Advisor to the Corporate Debtor. Mr. Naik informed the Applicant that he is not in possession of any paper/ document as the registered office of the Corporate Debtor is under attachment by Government authorities. 3.1.3. Subsequently based on information, the CoC and the IRP/ RP came to know that one of the Directors of the Corporate Debtor i.e. Mr. Vinay Phadnis is under Judicial custody at Nasik Central Jail and, therefore, information was sent to him regarding all the developments of the CIRP thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 per month for a property which is valued at about Rs. 12 crore and Banks have provided finance of more than Rs. 10 crore on the said property. 3.1.8. The IRP/ RP in the oral submission has mentioned that Shri Anup Naik is one of the partners in the Partnership firm M/s. Marathe Hospitality, which runs the Phadnis Resorts and Spa India Limited. Shri Anup Naik, Partner of Marathe Hospitality, was also the Tax Adviser of the Corporate Debtor and was associated with the Corporate Debtor. Therefore, as per the IRP/ RP, this transaction of giving the property owned by PR&SIL on lease to Marathe Hospitality is a preferential and fraudulent transaction. 4. Submissions by the Respondent No.4, Mr. Anup Naik, for self and on behalf of M/s. Marathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 43 and 44 of the Code will not apply on them. 5. Findings:- 5.1.1. The Lonavala Resort, situated at Tungarli in Lonavala, has been mortgaged by the Corporate Debtor to Union Bank of India since 30.06.2015. Subsequently the Corporate Debtor has executed a long-term lease agreement in 2016 with Marathe Hospitality. The relevant portion of the Lease Deed of 2016 signed between the parties is reproduced below:- "(1) In pursuance of the said Agreement and in consideration of the Rent hereby reserved and of the covenants, conditions and stipulations hereinafter contained the Lessor hereby demises unto the Lessee the said premises bearing Sub Plot Nos. 1 & 2 out of Final Plot No.; 59 old S. No. 118/1/A/1/2, Corresponding CTS No. 28/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear from the fact that after 10 years of lease rental @ Rs. 25,000 per month with no annual increment in rent provision. It is only the prerogative of the Lessee for the extension of the lease agreement. What is to be noted is that the Lessor, as per the agreement, does not have any say in the matter and it cannot object to any extension after 10 years but has to accept the extension in case it is so proposed by the Lessor, i.e. Marathe Hospitality. 5.1.3. As per Section 65-A(2)(c) of the Transfer of Property Act, 1882 as amended from time to time, no lease shall contain a covenant for 'renewal'. In the lease agreement of the Corporate Debtor, in a related party transaction with Marathe Hospitality, the total rent for a huge Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consent of Union Bank of India who are having First charge on the property is mala fide and is invalid. 5.1.5. It is also clear that the Union Bank of India, after going through all records and title report of the property, have financed the Corporate Debtor and, therefore, the property which was acquired in 2004 has not been acquired by the Corporate Debtor fraudulently. The attachment of the assets of the Corporate Debtor by the Economic Offences Wing will hamper the claim of the Creditors of the Corporate Debtor and therefore to protect the interest of the Bank and the present Creditors, this Bench directs the Economic Offences Wing and other Government Departments to release the property and assets of the Corporate Debtor currently ..... X X X X Extracts X X X X X X X X Extracts X X X X
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